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Appeals Court Raises the Bar on ADA ‘Direct Threat’ Defense

08/20/08

According to the EEOC, the Americans with Disabilities Act permits an employer to avoid hiring workers with a disability when they pose a direct threat to the health and safety of people in the workplace — including themselves.

In Chevron vs. Echazabal, the Ninth Circuit Court of Appeals threw a fastball at both the EEOC and employers when it decided that the “direct threat” defense to an ADA claim does not include threats to an employee/applicant’s own health and safety.

Employers breathed a sigh of relief when the U.S. Supreme Court reversed that decision. But the Supreme Court sent the case back to the Ninth Circuit to decide whether the applicant for the Chevron job, Mario Echazabal, really did pose a threat to his own health and safety. In a judgment handed down in July 2003, the court said he did not.

That decision, many employment lawyers feel, opens a can of worms for employers.One such attorney is ADA expert Amy Littrell, an associate in Ford & Harrison’s Tampa office. “This decision is troubling from an employer’s standpoint. The Ninth Circuit has set a high standard for an employer to meet when it decides it cannot hire an applicant because doing so would create a direct threat to the applicant’s own health.”

The Facts of the Case
Echazabal worked for a variety of maintenance contractors that serviced a Chevron plant in El Segundo, California. He applied for a permanent job with Chevron, and the company extended an offer contingent on his passing a physical exam. The exam revealed that Echazabal’s liver was releasing an abnormally high level of enzymes. As it turned out, he had hepatitis C.

Chevron doctors felt Echazabal could damage his liver if he took the job, because it would expose him to harmful chemicals. Echazabal’s own doctor said he should not be exposed to hepatotoxic chemicals and solvents, which were present in that workplace.

Chevron withdrew the job offer, and Echazabal sued, charging discrimination under the ADA. After the case made its way through several courts, the Ninth Circuit, as mentioned, ruled against Chevron for the second time.

According to Littrell, “The Ninth Circuit said that relying on these doctors’ opinions was not sufficient and that Chevron should have consulted a liver specialist. I don’t know how an employer is supposed to know when the opinions of two doctors — one of whom is actually treating the applicant — is enough and when it has to seek the advice of a specialist.”

The decision applies directly to employers in the states covered by the Ninth Circuit: California, Nevada, Washington, Arizona, Montana, Idaho, Hawaii, Alaska, and Oregon. But Littrell says other appeals courts could follow its reasoning, making it important for employers outside the Ninth Circuit to understand the decision.

What to Do
How should you handle a similar case if it occurred on your watch? Whatever state you’re in, advises Littrell, it’s wise to:

  • Hear all sides. The court in this case found fault with Chevron for not letting Echazabal try to prove he wasn’t a threat to himself. Consider discussing your employment decision, therefore, with the applicant/employee and giving him the opportunity to prove that the job wouldn’t threaten his health.
  • Resolve conflicts. In the Chevron case, medical opinions conflicted. In the eyes of the court, that weakened Chevron’s position. If medical opinions conflict in your situation, provide the physicians involved with more detailed information about the job. “If necessary,” counsels Littrell, “have another physician evaluate the applicant to resolve any conflicts.”
  • Use current medical knowledge and objective evidence. The court suggested that Chevron did not have the most current medical knowledge nor use the most objective evidence in making its decision. Make sure you get the best medical opinion, then, and ask any attending physician to evaluate the applicant’s ability to perform the job safely considering specific risks. Provide as much detail as you can. “If the risk is exposure to a hot, dusty environment, for example,” says Littrell, “provide such details as the temperature of the workplace, the number and length of breaks, the level of dust in the air, and the type of dust.” If necessary, have the doctor talk to the plant manager, supervisor, or an engineer. “If you can show that you provided the physician with detailed information about the job, you will be in a better position to defend your reliance on the physician’s opinion,” she adds.
Remember: To Judge and Jury, It’s Often About Fair Play
Littrell thinks Chevron would have been well-advised simply to find another position for Echazabal, even if it was not legally required. “Doing so would go a long way in making it appear that the company treated him fairly, which is often what a jury’s evaluation of a case boils down to.”

The ADA can be treacherous for the unwary. Let G.Neil help keep you in compliance with the law — and out of court — with these products:
G.Neil Fact Sheets: The ADA
The Top 25 Employment Law Cases
Federal Employment Laws: A Desk Reference
Employer’s Guide to Handling Government Investigations: EEOC
Applicant Risk Profiler
Federal/State Law Manuals
The ADA Booklet
Reasonable Accommodation Request Form
Confidential Medical Records Folder